Connaughton v. Sands

Cole, J. Two questions arise upon, this record : 1st. Can E. D. Levitt claim the property which was levied on by the plaintiff under the execution in favor of Lanyon, as exempt under the statute? and, 2nd. If he can, then can the defendant have the benefit of this defense in this action, in the same manner that Levitt might have insisted upon the exemption in the suit brought by him against the plaintiff? We think an affirmative answer must be given to both questions. It seems to us that Levitt was entitled to claim the property as exempt, under subdivisions 8 and 9, section 32, ch. 134, R. 5. Those clauses of the statute expressly exempt from sale on execution the provisions of the “ debtor and his family ” necessary for one year’s support, either provided or growing or both ; together with the necessary food for all the exempt stock ennumerated therein. It is not pretended that the grain levied on by the plaintiff was any more than sufficient for one year’s [391] support of the mother, brothers and sisters of Levitt, and the stock belonging to them. But it is said that E. X>. Levitt cannot claim the privilege of the exemption, and that it would be a perversion of the statute to extend it to one situated as he was. The evidence in the case shows that E. X). Levitt is over twenty-one years of age, unmarried, and resides with his mother, brothers and sisters. His father died about four years before the trial, leaving a widow and five or six children, also property consisting of forty acres of land, a team of horses, two cows and eight hogs. E. D. Jjevitt is the oldest child at home, and has devoted his entire earnings since his father’s death to the support of his mother, brothers and sisters. The oldest child next to him at home is sixteen years old, and the others are too small to do anything. He “ attends to matters out doors,” uses the team to cultivate the land belonging to the family, and says that he regards himself as “ the head of the family.” The property levied on by the plaintiff was grain which E. D. Levitt raised upon land worked on shares; it was necessary food for the stock and for the support of the family, and it is fair to assume that it would all have been devoted to these purposes. And consequently the question arises Was the statute intended to apply to an execution debtor under such circumstances, and give him the benefit of the exemption ? It is a very familiar rule in the interpretation of statutes of this character, that they are to be liberally construed. This is the doctrine of all the cases. Now the leading idea of our statute is to secure the family of an indigent debtor against want and distress for the necessaries of life. Therefore the exemption is to “ the debtor and familyOrdinarily it is the husband, father or mother who takes the charge of and provides for the wants of those living with them, constituting the “family,” and whom the debtor is bound to provide for by the claims of kindred and the obligations of society. But, as the case before us shows, it is sometimes the child and brother who [392] takes upon, himself the duty and obligation of providing for a widowed mother and dependent children, and who in legal contemplation becomes the head of the family. We see no sufficient reason for holding that the exemption does not apply to a person thus situated. Here F. D. Levitt was devoting his entire earnings to the support of his mother, brothers and sisters, his nearest kindred, whom he was bound by the highest obligations of nature to aid and support. He stood to some extent in the place of a husband and father. One of the witnesses says that the family could not have lived had it not been for his earnings; he transacted the necessary business of the family, and was the only responsible head it had. Under such circumstances, we think it is doing no violence to the spirit and policy of the law to say that he was entitled to the benefit of the exemption. Taking the charge of and providing for the wants of his mother and dependent brothers and sisters, he is to be deemed “the debtor,!’ and those persons as constituting “A is family,” within the meaning of the exemption laws. This view derives support from the cases of Bowne v. Witt, 19 Wend., 475; McMurray v. Shuck, 6 Bush, 111; Seaton et al. v. Marshall, id., 429; and Crane v. Waggoner and wife, 33 Ind., 83. The next question is, Can the defendant avail himself of this defense that the property was exempt, in this action ? It appears that the plaintiff levied upon the property by virtue of an action in favor of one Lanyon and against F. D. Levitt. Afterwards the defendant, who was sheriff, took the property by his deputy from the possession of the plaintiff, by virtue of a writ of replevin issued by a justice of the peace at the suit of F. D. Levitt against the plaintiff. On the trial before the justice, Levitt was nonsuited, and the justice ordered that the property should be restored to the plaintiff. This judgment was reversed by the circuit court on certiorari. The property has either been delivered up to Levitt by the deputy sheriff, or remains in the possession of the latter, or did at the time [393] tbe plaintiff as constable commenced tbis suit. Upon these facts can the plaintiff maintain this action to recover possession of the property ? His right to do so would seem to depend upon the question whether the property could be levied on to satisfy the execution in his hands in favor of Lanyon. If it was exempt property, it is very apparent that he had no right to levy upon it under the execution (unless Levitt waived the exemption), and there is no liability over on his part either to the judgment debtor or creditor. There can be no liability over to the judgment creditor, for the reason that the property, being exempt, could not be applied to satisfy his judgment. There can be no liability to the owner of the property, Levitt, because the latter already has the property in his possession, or it is in the possession of the deputy sheriff, who holds it for the owner. In either event, the plaintiff has a perfect and complete defense to any claim on the part of Levitt for the property seized upon the execution. This court has held that an officer has no right to maintain an action except so far is necessary to relieve all the obligations devolving on him to all parties interested in his levy. Main v. Bell, 27 Wis., 519. The application of that principle shows that the defendant may set up in this action the defense that the property levied on by the plaintiff on his execution was exempt, and was not liable to be applied to satisfy that writ. It is quite incorrect to say that the defendant was a trespasser, and exceeded his authority in taking the property from the possession of the plaintiff upon the writ of replevin. He obtained the property legally, so far as appears, and in fact now represents the owner. Nor do we see any ground for saying that Levitt is estopped, or the defendant for him, from claiming the privilege of the exemption, because he did not insist upon it when the levy was made. There is certainly no evidence which tends to show that Levitt at that time waived his exemption or misled the plaintiff upon that point. [394] It follows from these views that the judgment of the circuit court must be reversed, and a venire de novo awarded. By the Court.— So ordered.